2022 IL App (1st) 200919-U
No. 1-20-0919
Order filed September 19, 2022
First Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in
the limited circumstances allowed under Rule 23(e)(1).
___________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
___________________________________________________________________________
)
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court
) of Cook County.
Plaintiff-Appellee, )
) No. 10 CR 4302(02)
v. )
) The Honorable
ROBERT SCHULTZ, ) William G. Gamboney,
) Judge, presiding.
Defendant-Appellant. )
JUSTICE HYMAN delivered the judgment of the court.
Justice Coghlan concurred in the judgment.
Justice Pucinski specially concurred, joined by Justice Hyman.
ORDER
¶1 Held: Trial court judgment summarily dismissing Schultz’s post-conviction petition
affirmed.
¶2 Petitioner, Robert Schultz, pled guilty to first degree murder and accepted a 25-year prison
sentence. At the time of the offense, Schultz was 17 years old. He did not file post-plea motions
or pursue a direct appeal. Eventually, Schultz filed a pro se post-conviction petition contending
that he stated a gist of a constitutional claim that, because he must serve 100% of his sentence, the
Truth-in-Sentencing Act is unconstitutional as applied to him.
No. 1-20-0919
¶3 We affirm. Requiring a juvenile offender to serve 100% of a nonlife sentence for murder
does not violate Miller v. Alabama, 567 U.S. 460 (2012) or the eighth amendment, and Schultz’s
sentence falls within the 40-year threshold of People v. Buffer, 2019 IL 122327.
¶4 Background
¶5 The State charged Robert Schultz with 68 counts of first-degree murder and two counts of
aggravated discharge of a firearm in the death of Carlton Ewing. The State amended Count two to
remove the firearm allegation that would have mandated an additional 25-year sentence. That same
day, Schultz agreed to enter a negotiated guilty plea to the amended count of first-degree murder.
¶6 The plea’s factual basis established that, on August 17, 2009, 17-year-old Schultz used a
dangerous weapon to kill Ewing. Schultz was a recruit for the Latin Kings. Jesus Zuniga, whom
Schultz had known for three years, informed Schultz that August 17th was a “Hood Day.” On
Hood Day, Latin Kings members would look for rival gang members. The plan called for Zuniga
to alert Schultz to suspect members of a rival gang, Gangster Disciple Killers (GDK) and for
Schultz to come out of the gangway and use the weapon Zuniga provided. Schultz was in the
gangway when he heard someone say, “GDK.” Schultz came out of the gangway and used the
weapon, killing Ewing.
¶7 Before Schultz entered his plea, he waived his right to trial and a pre-sentence investigation
report. The trial court informed Schultz that the sentencing range for first degree murder was 20
to 60 years, served at 100 percent, including three years of mandatory supervised release.
¶8 After admonishing Shultz, the trial court found that Schultz understood the nature of the
charges against him and possible penalties, made the plea freely and voluntarily, and a factual
basis existed for the plea. The court accepted Schultz’s plea and entered a judgment of guilty.
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¶9 Based on the parties’ agreement, the trial court sentenced Schultz to 25 years in prison with
three years of mandatory supervised release. Schultz did not move to withdraw his plea and did
not take a direct appeal.
¶ 10 Eight years later, Schultz filed a pro se petition for post-conviction relief. Schultz alleged
his sentence violated the United States and Illinois constitutions for two reasons: (i) the provision
of the Truth-In-Sentencing Act (730 ILCH 5/3-6-3(a)(2)(i)) requires him to serve his complete
sentence without the opportunity to earn good conduct credit, and (ii) the trial court did not
consider trauma experienced in his youth and his potential for rehabilitation.
¶ 11 In a written order, the trial court summarily dismissed the petition as “frivolous and
patently without merit.” The court found that the Eighth Amendment protections stemming from
Miller inapplicable as Schultz received a discretionary 25-year sentence that did not amount to de
facto life without the possibility of parole and fell below the line established in Buffer. Moreover,
the trial court found that the provision of the Truth-In-Sentencing Act requiring a defendant found
guilty of first-degree murder to serve 100 percent of the sentence repeatedly had been held
constitutional.
¶ 12 Analysis
¶ 13 Schultz argues the trial court erred when it dismissed his post-conviction petition at the
first stage of proceedings, which raised constitutional challenges to his 25-year sentence for first-
degree murder. Schultz alleges that although the trial court rejected his argument that his sentence
violated the eighth amendment, the court did not consider that the truth-in-sentencing scheme
violated the proportionate penalties clause as applied to him. Specifically, Schultz contends that
section 6-3(a)(2)(1) of the Illinois Code of Corrections, requiring him to serve 100 percent of his
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sentence, violates the proportionate penalties clause because the trial court did not consider
Schultz’s youth and potential for rehabilitation.
¶ 14 Post-Conviction Legal Principles and Standard of Review
¶ 15 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq.) provides a method for
defendants to assert that their convictions resulted from a substantial denial of their rights under
the United States Constitution, Illinois Constitution, or both. People v. Hodges, 234 Ill. 2d 1,9
(2009). A post-conviction proceeding has three stages. People v. Harris, 224 Ill. 2d 115, 125
(2007). At the first stage, the court reviews the post-conviction petition and may dismiss the
petition only if the court determines it either is frivolous or patently without merit. People v.
Edwards, 197 Ill. 2d 239, 244 (2001); 725 ILCS 5/122-2.1(a)(2) (West 2018). A frivolous or
patently without merit petition “has no arguable basis either in law or in fact.” Hodges, 234 Ill. 2d
at 11-12.
¶ 16 To survive dismissal, a petition must present a “gist of a constitutional claim.” People v.
Gaultney, 174 Ill. 2d. 410, 418 (1996), citing People v. Porter, 122 Ill. 2d 64, 74 (1988). Construed
liberally, the petition must present a limited amount of detail, and the defendant does not need to
set out the claim in its entirety. Edwards, 197 Ill. 2d at 244. We review a court’s decision to dismiss
a post-conviction petition de novo. Id. at 247.
¶ 17 Relevant Juvenile Legal Principles
¶ 18 The eighth amendment prohibits “cruel and unusual punishments” (U.S. Const., amend
VIII) and applies to states through the fourteenth amendment (U.S Const., amend XIV). Roper v.
Simmons, 543 U.S. 551, 560 (2005). Not only does this prohibition include inherently barbaric
penalties but also disproportionate penalties. People v. Lusby, 2020 IL 12406, ¶ 32 (citing Graham
v. Florida, 560 U.S. 48, 59 (2010). To comply with the eighth amendment, sentences must be
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No. 1-20-0919
“graduated and proportioned.” Roper, 543 U.S. at 560. A genuine risk of disproportionate
punishment exists when the offender is a juvenile and the offense a serious one. People v. Holman,
2017 IL 120655, ¶ 33.
¶ 19 Beginning in 2005, the United States Supreme Court acknowledged that juvenile offenders
are constitutionally different from adult defendants regarding sentencing. People v. Jones, 2021
IL 126432, ¶43. In Roper, Graham, and Miller, the Court concluded that youth matters in
sentencing. Roper held that the eighth amendment bars capital punishment for juvenile offenders.
Roper, 543 U.S. at 568. Graham held that a life sentence without the possibility of parole for
juvenile offenders convicted of non-homicide crimes violates the eighth amendment. Graham, 560
U.S. at 83. And Miller extended this constitutional ban and held that the eighth amendment
prohibits mandatory life sentences for juveniles who commit homicide. Miller v. Alabama, 567
U.S. 460, 489 (2012). Recognizing that “children are constitutionally different from adults” (id. at
471), a court must have the opportunity to consider mitigating circumstances before imposing a
life sentence without the possibility of parole on a juvenile offender. Id. at 476, 489. The court
later held Miller applies retroactively. Montgomery v. Louisiana, 577 U.S. 190 (2016). Recently,
in Jones v. Mississippi, the United States Supreme Court reaffirmed that before imposing a
discretionary life term on a juvenile offender, the court must consider the Miller factors. Jones,
2021 IL 126432, ¶ 43 (citing Jones v. Mississippi, 593 U.S. ___ (2021)).
¶ 20 Given these cases, the Illinois Supreme Court has developed its own evolving
jurisprudence regarding Miller-related sentencing claims. In Reyes, our supreme court expanded
Miller’s application to include a de facto life sentence. People v. Reyes, 2016 IL 119271, ¶ 9. The
Reyes court, “that a juvenile may not be sentenced to a mandatory, unsurvivable prison term
without first considering in mitigation his youth, immaturity, and potential for rehabilitation.” Id.
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Holman concluded that mandatory or discretionary life sentences imposed on juvenile offenders
violate the eighth amendment and are disproportionate unless the sentencer considers youth and
its attendant characteristics. Holman, 2017 IL 120655, ¶ 40. Accordingly, the Holman court held
that Miller applies to discretionary sentences of life without parole for juvenile offenders. Id. In
Buffer, our supreme court concluded a sentence that exceeds 40 years constitutes a de facto life
sentence for juvenile defendants and violates the eighth amendment. People v. Buffer, 2019 IL
122327, ¶¶ 40-41. Under Buffer, a prison sentence of 40 years or less does not constitute a de facto
life sentence in violation of the eighth amendment because it provides juvenile offenders a
meaningful opportunity to obtain release based on maturity and rehabilitation. Id. ¶ 41.
¶ 21 Schultz’s Claims Were Not Waived by His Guilty Plea
¶ 22 Schultz’s petition alleges he was subject to an unfair proceeding under Miller, where the
court did not consider his youth and rehabilitative potential at sentencing. The State argues
Schultz’s guilty plea waived Miller claims. While the trial court’s order and Schultz’s brief
preceded the supreme court’s decision in People v. Jones, 2021 IL 126432, the State contends
Jones is dispositive. We find it distinguishable.
¶ 23 In Jones, the defendant, then 16 years old, was charged with multiple offenses, including
first-degree murder. Jones, Id. ¶ 3. In 2000, the defendant pled guilty to first-degree murder and
was sentenced to 50 years in prison. Id. ¶ 4-5. The trial judge found the defendant made the plea
knowingly and voluntarily, Id. ¶ 5. The defendant waived the preparation of a PSI. Id.
¶ 24 The defendant later sought leave to file a successive post-conviction petition, arguing that
his guilty plea and judgment predated Miller and the mandatory statutory sentencing scheme that
applied to him was void as to juveniles. Id. ¶7. The trial court denied the motion, and the appellate
court affirmed. Id. ¶¶ 7-10.
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¶ 25 Before the supreme court, the defendant argued that the sentencing scheme at the time of
his guilty plea violated the eighth amendment under Miller because had he gone to trial, he would
have been subject to a mandatory life sentence if convicted. Id. ¶ 15. And because the trial court
had to use discretion when deciding whether to impose a life sentence, a statutory scheme that
precluded a trial court from exercising discretion was unconstitutional as it applied to him. Id.
While defendant conceded he was not sentenced under the statutory scheme, he maintained “that
when he entered into the plea agreement with the State, he did not anticipate that the 50-year prison
term stipulated in it would later be declared to be a de facto life sentence that required the trial
court’s use of discretion and consideration of his youthful characteristics and rehabilitative
potential.” Id. ¶ 19.
¶ 26 Our supreme court rejected the defendant’s argument and affirmed the appellate court’s
judgment. Id. ¶¶ 1, 19. The Jones court noted that all parties understood the applicable law at the
time of the plea. Thus, the “crux” of the defendant’s claim concerns the inability to predict that the
United States Supreme Court would change the criteria for reviewing the constitutionality of the
applicable law. Id. ¶ 19.
¶ 27 The Jones court observed that a voluntarily guilty plea waives “all non-jurisdictional errors
or irregulates, including constitutional ones.” (Internal quotation marks removed and emphasis in
the original.) Id. ¶ 20. A guilty plea is “a bet on the future,” which “permits a defendant to gain a
present benefit in return for the risk that he [or she] may have to [forgo] future favorable legal
developments. Id. ¶ 21 (quoting Dingle v. Stevenson, 840 F.3d 171, 171 (4th Cir. 2016).
¶ 28 The supreme court concluded that because the defendant in Jones entered into a guilty plea
“‘to avoid a potential, not certain, sentence,’” his “knowing and voluntary guilty plea waived”
constitutional challenges based on later changes in relevant law. Id. ¶ 26.
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¶ 29 Schultz does not challenge a hypothetical sentence but falls within the exception noted in
Jones that “if the statutory sentencing scheme had actually been applied in this case to set [Jones’s]
life sentence, [Jones’s] argument would have presented a claim that we could have reviewed on
its legal merits.” Id. ¶ 18.
¶ 30 Simply put, unlike in Jones, Schultz sought relief based on a sentencing scheme that
applied to him, which does not implicate Jones’s “bet-on-the-future” concerns. So, Jones does not
preclude this court from reviewing the merits of Schultz’s claim.
¶ 31 Petitioner Did Not Forfeit Proportionate Penalties Claim
¶ 32 Schultz argues his petition establishes a gist of a constitutional claim for an as-applied
challenge that his sentence violates the proportionate penalties clause of the Illinois Constitution.
He asserts that section (a)(2)(i) of the truth-in-sentencing statute violates the Illinois proportionate
penalties clause because his youth was not considered at sentencing.
¶ 33 The State argues Schultz forfeited this claim by not having raised it in his petition. The
State also contends Schultz’s petition alleged the truth-in-sentencing statute was unconstitutional
under the eighth amendment but fails to assert that the sentence violated the proportionate penalties
clause.
¶ 34 To survive dismissal at the first stage, a petition must present the gist of a constitutional
claim. People v. Gaultney, 174 Ill. 2d 410, 418 (1996). A defendant does not need to make legal
arguments or cite legal authority in the petition, just present a limited amount of detail. Id. This is
a low threshold. Id. A claim not raised in the petition cannot be argued for the first time on appeal.
Jones, 213 Ill. 2d 498 at 505. For this reason, we examine the petition to determine whether
Schultz’s appellate arguments draw on a claim presented to the trial court.
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¶ 35 In his petition, Schultz alleged that (i) at the time of the offense, he was 17 years old, and
(ii) he pled guilty to first degree murder and was sentenced to serve 25 years at 100%. He argued,
“The Truth-In-Sentencing statute which [a]ffects our children is cruel, against the public and
family interest, ignores the decency of a civilize[d] society and the opportunity for a young man
like the petitioner to rehabilitate, making it unconstitutional and in violation of the Eighth and
Fourteenth Amendments of both the Illinois and United States Constitution.” He also argued that
“[t]he typical safeguards under both the Eighth and Fourteenth Amendments of the United State
Constitution must not be ignored when considering the sentences against crimes committed by
young men who suffered from traumatic events prior to their convictions.”
¶ 36 Schultz’s petition asserted that the truth-in-sentencing statute violated both the Illinois
Constitution and the United States Constitution, as applied to his sentence. We acknowledge the
State’s point that Schultz only cited the Eighth and Fourteenth Amendments to the United States
Constitution, amendments our constitution does not have. But, when discerning the scope of a
claim in a pro se post-conviction petition at the first stage, we construe it liberally in the petitioner’s
favor. E.g., People v. Coleman, 183 Ill. 2d 366, 382 (1998). By referencing the Eighth
Amendment—through which we protect the rights of juveniles in criminal sentencing under the
federal constitution—in the same sentence as the Illinois constitution, we conclude Schultz
intended to invoke the similar protections we afford juveniles under the proportionate penalties
clause. At this stage, liberally construing the petition as we must, we find that Schultz has not
forfeited his proportionate penalties clause claim.
¶ 37 Truth-In-Sentencing Statute
¶ 38 Schultz concedes his 25-year sentence with no possibility of parole is not a life sentence.
Instead, Schultz argues the truth-in-sentencing statute (730 ILCS 5/3-6-3(a)(2)(i) (West 2020)), is
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unconstitutional as applied to him because it does not allow him to demonstrate rehabilitative
potential and obtain release before the expiration of his sentence.
¶ 39 As stated, the United States Supreme Court in Miller held that mandatory life sentences
without the possibility of parole for juvenile offenders violate the eighth amendment. Miller, 567
U.S. at 479. Our supreme court applied Miller to de facto life sentences (Reyes, 2016 IL 119271,
¶ 10) and discretionary life sentences (Holman, 2017 IL 120655, ¶ 40). Our supreme court also
determined that a sentence exceeding 40 years presents a de facto life sentence. Buffer, 2019 IL
122327, ¶ 40. More recently, in People v. Dorsey, our supreme court held that a juvenile
defendant’s opportunity for release after spending 40 or fewer years is the only relevant
consideration, whether or not the trial court considers it. 2021 IL 123010, ¶ 64.
¶ 40 Schultz’s 25-year sentence is not unconstitutional under current precedent – he did not
receive a mandatory life sentence as prohibited by Miller, nor a discretionary de facto life sentence
defined by Buffer. Even if served at 100%, Schultz has the opportunity for release before serving
40 years.
¶ 41 Schultz primarily relies on People v. Othman, 2019 IL App (1st) 150823 (Othman I), where
we found the challenged statute unconstitutional. But our Supreme Court entered a supervisory
order vacating the portions of Othman I that addressed the defendant’s sentence. People v. Othman,
2020 IL App (1st) 150823-B, ¶¶3-5 (Othman II). Nevertheless, Schultz argues the reasoning in
Othman I was correct and should be applied. While we appreciate Othman I’s discussion of
juvenile sentencing principles, we disagree.
¶ 42 In Othman I, the 17-year-old defendant was sentenced to 55 years for first degree murder.
Id. ¶ 1. On appeal, the court addressed whether the defendant’s sentence was unconstitutional
under Miller and whether the Truth-in-Sentencing Act was unconstitutional as applied to juvenile
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offenders. Id. ¶ 77. Because “every major case on the issue of juvenile justice strongly condemns
sentencing policies that prevent a juvenile from seeking to demonstrate rehabilitation and parole
at some point during his prison sentence.,” the Othman I court found that the Truth-in-Sentencing
Act was unconstitutional. Id. ¶ 92. While Othman I expresses great hopes about rehabilitation and
sentencing juveniles, it is not the current law.
¶ 43 As the State points out, the appellate court rejected similar arguments about truth-in-
sentencing before and after Othman I. See People v. Pacheco, 2013 IL App (4th) 110409, ¶ 60 and
People v. Banks, 2015 IL App (1st) 130985, ¶ 22; see also People v. Johnson, 2020 IL App (2d)
170646, ¶¶ 7-15 (“[S]ince the decision in Miller, courts in this state have repeatedly rejected
similar as-applied challenges regarding the constitutionality of section 3-6-3(a)(2)(i) . . .”) and
People v. Brakes, 2021 IL App (1st) 181737, ¶¶ 39-44.
¶ 44 In Brakes, we found the reasoning in Othman I unpersuasive even if it survived our
supreme court’s supervisory order. Brakes, 2021 IL App (1st) 181737, ¶ 41. We noted the analysis
in Othman I was dicta because the court found the defendant’s 55-year sentence substantively
unconstitutional under the proportionate penalties clause. Id. (citing Othman I, 2019 IL App (1st)
150823, ¶¶ 77-86. Thus, the court’s further analysis of the constitutionality of the truth-in-
sentencing statute was not necessary to its judgment. Id. And we noted that we agree with the court
in Pacheco that the remedy for a juvenile defendant who receives a de facto life sentence is a
challenge to the substantive sentence, not the statute requiring the defendant to serve 100%. Id.
¶ 45 We have nothing but sympathy for legal framework Othman I envisioned. For example,
Othman I presciently described the legislative failure to account for the unique nature of juvenile
offenders when drafting and passing the Truth In Sentencing Act. See Othman I, 2019 IL App (1st)
150823, ¶ 108. The court also correctly noted the disjuncture between truth in sentencing and the
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United States Supreme Court’s pronouncements on eighth amendment protections for juveniles.
Id. (Quoting Graham v. Florida, 560 U.S. 48, 75 (2010) (“By denying [juvenile defendants] the
right to reenter the community, the State makes an irrevocable judgment about that person’s value
and place in society.”). We think Othman I’s vision for juvenile sentencing—prohibiting juveniles
from ever being subject to 100% sentences—is a lofty goal. Our General Assembly has largely
made good on that goal for juvenile offenders convicted of non-homicide offenses after June 1,
2019, providing them with mandatory parole review after serving 10 or 20 years of their sentence,
depending on the offense of conviction. See 730 ILCS 5/5-4.5-115(b) (West 2020).
¶ 46 Regardless of our view of the ideal manner to conduct juvenile sentencing, we must defer
to our supreme court. And, as we observed in Brakes, Dorsey effectively overruled the reasoning
in Othman I. Brakes, 2021 IL App (1st) 181737, ¶ 42. We reasoned that Dorsey shifts the focus
from the sentence imposed to the actual time a defendant must serve. Id. “In other words, a juvenile
defendant’s sentence (whether served at 100%, 85%, or 50%) may be subject to a constitutional
challenge only if it will keep the juvenile in prison for more than 40 years. Id. (citing Dorsey, 2021
IL 123010, ¶ 64 (relying on Buffer, 2019 IL 122327)). Dorsey emphasized Buffer’s 40-year line
hinged on a sentence lacking an “opportunity to demonstrate rehabilitation and obtain release short
of serving more than 40 years in prison.” Dorsey, 2021 IL 123010, ¶ 64. We cannot read Dorsey
any other way than to say that a juvenile sentenced before June 1, 2019, who will serve an actual-
time portion of his or her sentence under 40 years, may not avail themselves of Miller’s
constitutional protections. Schultz’s 25-year sentence served at 100% does not violate the eighth
amendment since it dwells beneath Buffer’s ceiling.
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¶ 47 For clarity, we also find that Schultz’s proportionate penalties clause does not warrant
further proceedings. At oral argument, the State noted that Miller and Dorsey aside, the question
becomes whether Schultz’s sentence violates the proportionate penalties clause on its own.
¶ 48 The proportionate penalties clause provides that “penalties shall be determined both
according to the seriousness of the offense and with the objective of resorting the offender to useful
citizenship.” Ill. Const. 1970, art. 1 § 11. And a violation may be shown if the penalty is “cruel,
degrading, or so wholly disproportionate to the offense committed as to shock the moral sense of
the community.” People v. Moss, 206 Ill. 2d 503, 522 (2003). Schultz does not offer an argument
aside from Miller that his sentence violates the proportionate penalties claim.
¶ 49 Even so, as we explained in Brakes, bound by Dorsey, the question is not whether a
defendant must serve his or her sentence at 100% (or 85% or 50%); instead, we look only to
whether the actual time served will amount to a de facto life sentence. See Brakes, 2021 IL App
(1st) 181737, ¶ 44 (noting that if the defendant’s sentence violates the proportionate penalties
clause, it is because the term of years is substantively unreasonable). Schultz is serving a 25-year
sentence, and, as we concluded, concerning his Eighth Amendment claim, his term of years is not
a de facto life sentence no matter how much of the sentence Schultz serves.
¶ 50 Affirmed.
¶ 51 JUSTICE PUCINSKI, specially concurring:
¶ 52 The majority points out that the General Assembly has provided that juvenile offenders
convicted on or after June 1, 2019, are now entitled to mandatory parole review after serving 10
or 20 years of their sentence, depending on the offense of conviction. See 730 ILCS 5/5-4.5-115(b)
(West 2020). But that leaves out a specific number of juvenile offenders who were sentenced
before June 1, 2019. I understand that the Legislature can create different classes of offenses and
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offenders, but to pin that difference on when sentencing occurred is, to me, an unjust and
unjustifiable system. If the Legislature believes that juvenile offenders should have the right to
demonstrate their rehabilitation – a hallmark of the Illinois system of corrections since its earliest
days – then that right should be available to every juvenile defendant. That is not so say that every
juvenile defendant will be able to demonstrate rehabilitation; the parole board has complete
oversight in that matter and will carefully consider every defendant on a case-by-case basis; but
the right to petition for early release based on rehabilitation should not be denied to one group of
juvenile offenders just because they were sentenced before the Legislature made the political
decision not to make 5-4.5-115(b) retroactive.
¶ 53 JUSTICE HYMAN joins this special concurrence.
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